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Though all ministers represent the sovereign by whom they are sent, some are representatives of his person and dignity, as well as his authority, in the matters for which they are sent; while others represent him only with respect to his rights and his affairs, with which they are entrusted. The former are called ambassadors, who are ministers of the first order; and the latter envoys, or ministers of the second order.1 Ambassadors and envoys sometimes have the additional title or qualification of extraordinary, which, however, is an accidental distinction relative to the subject of their mission. There is also a third class of public ministers called residents, whose rank is inferior to that of ministers of the second order. Modern usage has established (for the sake of convenience, and to avoid the niceties of diplomatic ceremonial,) a new species of public ministers, who have no particular denned character with respect to rank or precedence. They are called simply ministers, but are sometimes invested with the title of ministers plenipotentiary. That title confers upon them a rank which usage has placed on an equality with that of envoys extraordinary.
With respect to consuls, they are mere agents or commissioners, and do not enjoy the protection of the law of nations (though regard is due to their office by the state where they reside) unless they have credentials, in which case they are public ministers, notwithstanding their title.2
All these ministers, whatever may be their rank, precedence, or title, are equally invested with certain privileges and immunities springing from the law of nature and nations. Natural law prescribes to us to seek the establishment of peace by all lawful means; and as those
1 Vattel, Dr. des G. L iv. c. vi § 70, 71, 72.
: Id. 1. iv. c. vi. § 71, 73, 74, 75; and, as to consuls, l . ii. § S*.
persons are necessary to procure, preserve, and strengthen it by treaties and negotiations, natural law must necessarily provide for their security, without which the end prescribed by that law could not be attained. Hence it follows also, that, by virtue of the same law of nature, those public functionaries must (at least in those things which regard their character) be free from all jurisdiction and every restraint of the state to which they are sent, because they could not duly provide for and maintain the rights of their country, if they were liable to be called to account for their conduct by any other authority than that of their own sovereign.1 Besides, a public minister represents the sovereign who sent him, and is therefore free from the authority of the laws of the country where he is appointed to reside.2 If he grossly offends, or makes an ill use of his character, to conspire against or injure that country, he may be sent home and accused before his master, who is bound to do justice against him, or must otherwise shew himself to be the accomplice of his crimes. But there is great dispute among the writers on the law of nations, whether this exemption of ambassadors extends to all crimes, as well against natural as against mere positive law.3 "Our law," says Blackstone, " seems to have formerly taken in the restriction, as well as the general exemption. For it has been held, both by our common
1 Pufendorf, Dr. de la N. et des G. l . ii. c. iii. § 23. And see, on the whole subject of ambassadors, Wicquefort, L'Ambassadeur et ses fonctions, 2 vols. 4to. And for modern usages, Martens, Droit des Gens. liv. vii.
2 Grot . Dr. de la Guerre et de la Paix, 1. ii. c. xviii. § 4, num. 8 : but «e Barbeyrac's notes on that paragraph, as to the supposed arbitrary Uw of nations.
3 Van Leuwin, in Pandect. 50. 7, 17. Pufend. 1. viii. c. ix. § 9 and 17, and notes by Barbeyrac. Bynkershoek, de foro Legator, c. xvii. iriii. xix.
lawyers and civilians, that an ambassador is privileged both by the law of nature and nations; and yet, if he commits any offence against the law of reason and nature, he shall lose his privilege; and that, therefore, if an ambassador conspires the death of the king in whose land he is, he may be condemned and executed for treason; but if he commits any other species of treason, it is otherwise, and he must be sent to his own kingdom. But, however these principles might formerly obtain, the general practice of this country, as well as of the rest of Europe, seems now to pursue the sentiments of the learned Grotius, that the security of ambassadors is of more importance than the punishment of a particular crime ;1 and therefore few if any examples have happened within a century past where an ambassador has been punished for any offence, however atrocious in its nature."2
In respect of civil suits, all the foreign jurists agree that neither an ambassador, nor any of his train, can be prosecuted for any debt or contract in the courts of that kingdom wherein he is sent to reside.
The arrest of an ambassador of Peter the Great, czar of Muscovy, in London, during the reign of queen Anne, occasioned the enactment of a statute,3 providing (with certain restrictions in the case of traders within the description of the bankrupt-laws, in the service of any ambassador) that, for the future, all process whereby the person of any ambassador or of his domestic servant may be arrested, or his goods distrained or seized, shall be utterly null and void; and the persons prosecuting, soliciting, or executing such process, shall be deemed vio
■ Grot. D. de la G. et de la P. l . ii. c. xviii. § 4. s Blackst. Com. b. t c. vii. 253, 25+.
3 Stat . vii. Anne, c. xii. See Martens, Causes Celebres, tom. i. p. 47; and tom. ii. p. 462, &c.
lators of the law of nations, and disturbers of the public repose, and shall suffer such penalties and corporal punishment as the lord chancellor and the two chief justices, or any two of them, shall think fit. And in consequence of this statute, thus declaring and enforcing the law of nations, these privileges are now held to be part of the law of the . land, and are constantly allowed in the courts of law.
II. It is also the queen's prerogative to make treaties, leagues, and alliances, with foreign states and princes.1 This function properly belongs to the sovereign power (or, at least, to some power which is sovereign in that particular); for no treaty can be binding on the whole community which may be set aside by any superior authority within the commonwealth -? and it is therefore entrusted to the queen alone, as being within the boundaries of her prerogative. Whatever contracts, therefore, she engages in, no other power within the kingdom can legally delay, resist, or annul; though, as we have already seen, her ministers are responsible to parliament for their participation in the conclusion of any treaty derogatory to the honour and interest of the nation.
Upon the same principle, the queen has also the sole prerogative of making war and peace. War is the only means of deciding the differences of those who have no common superior to whom they may appeal for the decision of the points at issue between them, in cases where negotiation3 or arbitration cannot be resorted to with success. But the right of war, strictly so called, exclusively
1 Blackst. Com. b. i. c. vii. p. 257. 5 Pufendorf, D. de la N. et des G. l . viii. c. ix. § 6. s Lampredi, Jur. Public. Univers. par. iii. cap. xi.; and see also cap. xii.
belongs to the sovereign power.1 If a dispute respecting any alleged claims or injuries arises between the subjects of different states, they must first invoke the justice of that jurisdiction to which the matter in dispute, by the rules of international law, belongs; and, in case of a refusal by the foreign state, the injured party may recur to the protection of his own nation.2 In the same manner, if the subject of one country is injured by the government of another, he must first ask for redress at the hands of that community by which he was aggrieved, and which must be presumed to be willing to do justice on the matter being brought under its cognisance in a proper manner; but if justice be refused, he is entitled to claim the protection of the community whereof he is a member. The reason of this is, that there would arise most serious inconveniences from allowing any person, or any body of men, not invested with sovereign power, to exercise the right of war. Mankind are divided into separate communities or nations, and those communities are constituted into monarchies and republics of various kinds, for the welfare and good government of the human species, and to secure the rights of each individual from any injury, whether proceeding from his own fellow-citizens or from foreigners. To the state alone is thus committed, by the very grounds of its constitution, the duty of protecting the rights of its subjects; and they are no more authorised to take the administration of justice into their own hands in cases of foreign than of domestic injuries. With respect to those instances where not any particular indi
1 Grot . Dr. de la G. et de la P. l . i c. Hi. § 4. Pufendorf, Devoir de l'Homme et du Citoyen, 1. ii. c. xyi. § 8.
2 Grot. Dr. de la G. et de la P. 1. ii. c. xri. Pufendorf, Dr. de la N. et des Gens, 1. viii. c. vi. § 12.